Monday, 27 February 2017

THE PRINCIPLE OF LEGALITY IN PUNISHMENT



The application of the ius acceptum rule to punishment is as follows: in the same way as a court cannot find anyone guilty of a crime unless the conduct is recognised by statutory or common-law as a crime, it cannot impose a punishment unless the punishment, in respect of both its nature and extent, is recognised or prescribed by statutory or common-law.



The application of the ius praevium rule to punishment is as follows: if the punishment to be imposed for a certain crime is increased, it must not be applied to the detriment of an accused who committed the crime before the punishment was increased

The application of the ius certum rule to punishment is that the legislature should not express itself vaguely or unclearly when creating and describing punishment.

The application of the ius strictum rule to punishment is that where a provision in an Act, which creates and prescribes a punishment is ambiguous, the court must interpret the provision strictly

Section 35(3)(n) of the Constitution contains a provision which incorporates the nulla poena rule. It provides that the right to a fair trial also includes the right to the benefit of the least severe of the prescribed punishments if the prescribed punishments for the offence have been changed between the time that the offence was committed and the time of sentencing.

THE ACT(CONDUCT OR OMISSION)



BACKGROUND

it was stated on previous slides that the four cardinal requirements of liability for a crime are:

(1)an act,

(2)  compliance with the definitional elements,

(3)  unlawfulness and

(4) culpability.

In this study unit we shall discuss the first of these requirements, and related topics. In legal literature the requirement of an act which corresponds with the definition of the proscription is often referred to by the technical expression act usreus.

Once it is clear that the type of crime with which X is charged is recognised in our law (in other words once it is clear that the principle of legality has been complied with), the first requirement for determining criminal liability is the following: there must be some conduct on the part of X. By `'conduct'' is understood an act or omission. `'Act'' is sometimes referred to as 'positive conduct'' or `'commission''(or its Latin equivalent commissio) and an `'omission'' (or its Latin equivalent omissio) is sometimes referred to as `'negative conduct'' or `'failure to act''.

``Conduct'', ``act'' and ``omission''

From a strictly technical point of view the term `'act'' does not include an `'omission''. An `'act'' is rather the exact opposite of an `'omission''. No general concept embraces them both. The two differ from each other like night and day, because to do something and not to do something are exact opposites. However, one may use the word `'conduct'' to refer to both of them. To be completely correct technically, one would therefore always have to speak of `'an act or an omission'' or of `'an act or a failure to act'' when referring to this first basic element of liability.

Thoughts not punishable



Merely thinking of doing something, or even a decision to do it, is not punishable. Before there can be any question of criminal liability, X must have started converting his thoughts into actions. This does not mean that only the completed crime, with all the harm already done, is punishable. As will be seen, an attempt to commit a crime is also punishable, but even then some act is required which goes beyond a mere idea or a decision to do something. Even uttering words maybe sufficient to constitute a crime, as is evident from the fact that incitement and conspiracy are punishable.

Act must be a human act or omission



The act must be a human act; in other words, the perpetrator of the act must be a

human being. In ancient societies and during the Middle Ages, animals and even

inanimate objects, such as beams which fell on people's heads, were sometimes

``tried'' and ``punished'', but this cannot happen today in the South African (or

any other modern) legal system. (For an example of the punishment of animals,

consult Exodus 21, verse 28.) A human being can, however, be punished if he commits a crime through the agency of an animal, for example where he urges

his dog to bite someone (Eustace 1948 (3) SA 859 (T); Fernandez 1966 (2) SA 259 (A)).

Act or conduct must be voluntary



An act or an omission is only punishable if it is voluntary.

The conduct is voluntary if X is capable of subjecting his bodily movements to his will or intellect. If conduct cannot be controlled by the will, it is involuntary, such as, for example ,when a sleep-walker tramples on somebody, or an epileptic swings his hand while having an epileptic fit and hits someone in the face. If X's conduct is in voluntary, it means that X is not the ``author'' of the act or omission; it was then not X who committed an act, but rather something which happened to X.

The concept of a voluntary act should not be confused with the concept of a willed act. To determine whether there was an act in the criminal-law sense of the word, the question is merely whether the act was voluntary. It need not be a willed act as well. Conduct which is not willed, such as acts which a person commits negligently, may therefore also be punishable.

This does not mean that a person's will has no significance in criminal law; whether he directed his will towards a certain end is indeed of the greatest importance, but this is taken into consideration only when determining whether the requirement of culpability(and more particularly culpability in the form of intention) has been complied with.

Factors which exclude the voluntariness of the act

The following factors result in the conduct not being regarded as voluntary in the eyes of the law, and therefore not qualifying as acts in the criminal-law sense of the word. A Absolute force The voluntary nature of an act may first be excluded by absolute force (vis absoluta) (Hercules 1954 (3) SA 826 (A) 831 (G)). The following is an example of absolute force:

X is slicing an orange with his pocket-knife. Z, who is much bigger and

stronger than X, grabs X's hand which holds the knife, and presses it, with

the blade pointing downward, into Y's chest. Y dies of the knife-wound. X,

with his weaker physique, would have been unable to defend himself, even

if he had tried. X performed no act It was Z who performed the act.

Involuntary conduct - absolute force.. Z, who is much bigger and stronger than X, grabs X's hand in which she happens to hold a knife, and presses it, with the blade pointing downward, into Y's chest, resulting in Y's death. X, who is physically much weaker than Z, is unable to prevent this, even if she tries. Does X commit murder or culpable homicide? No, because there is no voluntary conduct on her part.

This situation must be distinguished from one involving relative force (vis

compulsiva), where X is indeed in a position to refrain from committing the

harmful act, but is confronted with the prospect of suffering some harm or wron gif he does not commit it.

The following is an example of relative force:

Z orders X to shoot and kill Y, and threatens to kill X himself if he refuses to

comply with the order. If X then shoots Y, there is indeed an act, but X may

escape liability on the ground that his conduct was justified by necessity.

(The facts in Goliath 1972 (3) SA 1 (A) and Peterson 1980 (1) SA 938 (A) were

materially similar to those given in the above example of relative force. Goliath's case will be discussed below under the ground of justification known as necessity.)

The crux of the difference between absolute and relative force lies in the fact that absolute force excludes X's ability to subject his bodily movements to his will or intellect, whereas this ability is left intact in cases of relative force. Relative force is therefore rather aimed at influencing X to behave in a certain way, although it remains possible for him to behave differently.



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